BILL NUMBER:S7334

TITLE OF BILL:  An act to amend the social services law, in relation
to the permanent termination of parental rights for reason of
developmental disabilities; and to repeal subdivision 6 of section
384-b of such law relating thereto

PURPOSE:  This bill removes " mental illness" and "mental retardation"
as separate grounds for terminating parental rights under the social
services law.

SUMMARY OF PROVISIONS:

Section one of the bill amends section 384-b of the social services
law by eliminating subsection c of subdivision 4 thereby removing from
law mental illness and mental retardation as grounds for the
termination of guardian ship and child custody.

Section two of the bill repeals subdivision 6 of section 384-b of the
social services law which defines the terms "mental illness" and
"mental retardation" and explains the required court procedures,
proscribed examinations and expert testimonies for verifying that an
individual is mentally ill or mentally retarded.

Section three of the bill provides for an immediate effective date.

              

JUSTIFICATION:  The termination of parental rights completely and
irrevocably severs a parent's right to custody as well as the right to
ever visit, communicate with, or regain custody of his or her child.
Parents with disabilities are particularly vulnerable to loss of
custody and termination of parental rights due to preconceived notions
about their ability to parent and the focus on their diagnosis or
condition, rather than their behavior, i.e. ability to parent.
Research shows an alarming rate of custody loss among parents with
psychiatric or intellectual disabilities - as high as 80%. Statewide,
about one-fourth of foster care placements involve at least one parent
with a serious mental health problem.

The Social Services Law, as amended in 1976, includes the following
grounds for termination of parental rights: abandonment; permanent
neglect; severe and repeated abuse; and inability by reason of mental
illness or mental retardation to provide proper and adequate care.
The statute is discriminatory because it explicitly and unnecessarily
incorporates disability-related grounds for termination of parental
rights.

Though disability alone is not justification for termination of parent
rights, the major concern is that the explicit inclusion of disability
grounds unfairly allows a shift in the focus from a parent's behavior
to a parent's diagnosis or condition. Under the current statute,
parents suffer from a presumption of unfitness.  However, recent
research has found that parents with disabilities are not more likely
to maltreat their children than parents without disabilities. While
psychiatric or intellectual disability may be a contributing factor to
a parent's behavior, there are many other factors that can be
contributing which are not singled out in statute. Rather it is the


behavior itself which should be the basis for termination of parental
rights, not the condition.

Family preservation is an important goal under the social services
law. A focus on proper preventive or unification services for families
with disabilities will likely decrease foster care placements, thereby
saving the state money and even more importantly sparing families the
trauma associated with unnecessary foster care.

New York State should act to remove this discriminatory section of the
statute in order to remove the biases, the disincentive for parents to
seek treatment and ultimately the unnecessary placement of some
children in foster care and lack of adequate reunification efforts.

LEGISLATIVE HISTORY: S.3026-2011

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: Immediately.